FCC aims to set some new regulations on broadband (Update)

May 5, 2010

Federal Communications Commission Chairman Julius Genachowski testifies before the Senate Commerce, Science and Transportation Committee in April 2010. Genachowski on Thursday laid out a new plan to prevent telecommunications firms from throttling fair access to high-speed broadband Internet.

(AP) -- The head of the Federal Communications Commission thinks he has come up with a way to salvage his ambitious national broadband plans without running into legal obstacles that have threatened to derail him.

FCC Chairman Julius Genachowski said Thursday that his agency has crafted a compromise in how it regulates high-speed Internet access: It will apply only narrow rules to broadband companies. The FCC chairman, a Democrat, said this delicate dance will ensure the agency has adequate authority to govern broadband providers without being too "heavy-handed."

But his plan likely wil hit legal challenges from the big phone and cable companies and already faces significant opposition from Republicans at the FCC and in Congress.

The FCC has been scrambling to come up with new regulatory framework after a federal appeals court last month cast doubt on its jurisdiction over broadband under existing rules.

The FCC needs that legal authority for the sweeping national broadband plan that it released in March. Among other things, the plan aims to give more Americans access to affordable high-speed Internet connections by revamping the federal program that subsidizes telephone service and using it to pay for broadband.

Genachowski also needs this authority to move ahead with his proposal to adopt "network neutrality" rules prohibiting phone and cable companies from prioritizing or discriminating against Internet traffic traveling over their lines. Internet companies such as Google Inc. and Skype Ltd. say these rules are needed to prevent broadband providers from becoming online gatekeepers and blocking Internet phone calls, streaming video and other services that compete with their core businesses.

Genachowski said his new regulatory framework will allow the FCC to move ahead with its plans and "support policies that advance our global competitiveness and preserve the Internet as a powerful platform for innovation."

The FCC currently treats broadband as a lightly regulated "information service." It has maintained that this framework gave it ample authority to proceed with its broadband plan and to impose net neutrality rules. But the U.S. Court of Appeals for the District of Columbia rejected this argument.

So now Genachowski is seeking to redefine broadband as a telecommunications service subject to "common carrier" obligations to treat all traffic equally. Similar rules apply to other networks that serve the public, including roads and highways, electrical grids and telephone lines. But Genachowski said he will refrain from imposing more burdensome mandates that also apply to traditional telecom companies. For instance he would avoid imposing obligations for the broadband companies to share their networks with competitors.

The proposal is intended to strike a balance that can satisfy both Internet service providers that oppose new regulations and public interest groups that are demanding greater consumer protections. FCC officials stressed that they intend to regulate only Internet connections, not the online services flowing through them.

The FCC will soon seek public comment on Genachowski's proposal. It would have to be approved by three or more of the FCC's five commissioners, and Genachowski is expected to have the support of his two fellow Democrats.

Several public interest groups and at least one key Democrat who sits on the House committee that oversees the FCC, Rep. Edward Markey of Massachusetts, praised the proposal. "With this decision, the FCC will ensure that the agency remains the `cop on the beat,' protecting consumers and competition on the World Wide Web," Markey said.

But Republicans lined up against the plan.

The two Republican FCC commissioners, Robert McDowell and Meredith Baker, said the proposal would "shatter the boundaries" of the agency's authority and discourage broadband providers from investing in their networks by imposing "burdensome rules excavated from the early-Ma Bell-monopoly era onto 21st century networks."

House Republican Leader John Boehner of Ohio called the plan "a government takeover of the Internet."

The battle is likely to play out in a courtroom if the big phone and cable companies decide to challenge the new framework. The companies already oppose Genachowski's network neutrality proposal, warning that restrictions on what they can do with their networks will discourage them from investing in their lines.

Stocks of several broadband providers dived Thursday. Shares of Comcast Corp., the nation's largest cable company, fell 6 percent in afternoon trading, while Cablevision Systems Corp. and Time Warner Cable lost 8 percent. Shares of phone companies Verizon Communications Inc. and AT&T Inc. dropped about 3 percent, roughly in line with the broader market plunge Thursday.

Tom Tauke, Verizon's top Washington official, said Genachowski's new approach to regulation is "legally unsupported" and "could ultimately harm consumers and inhibit the innovation and investment he wants to encourage."

Comcast said that while it is disappointed with the FCC proposal, it is prepared to work with the agency. But Comcast may be more open to compromise than other companies because it needs FCC approval to take a controlling stake in NBC Universal.

It was Comcast that helped set in motion the events leading to last month's court ruling.

The case centered on the company's behavior in 2007 when it interfered with subscribers using the online file-sharing service BitTorrent, which lets people swap movies and other big files. Comcast said the service was clogging its network, but public interest groups maintained that the company saw the swapping of video files as a threat to its cable business.

The FCC, then led by Republican Kevin Martin, ordered Comcast to stop blocking subscribers from using BitTorrent and based its decision on net neutrality principles it had adopted in 2005.

Comcast challenged the order in court. It argued that the order was illegal because the agency was seeking to enforce principles and not regulations or laws. That is one reason that Genachowski is now pushing the FCC to adopt formal net neutrality rules that would apply across the industry.

Comcast also had argued that the FCC lacked authority to mandate net neutrality because it had deregulated broadband by classifying it as an information service under the Bush administration. Now Genachowski's next move could reverse course on that approach.

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6 comments

The Associated (with terrorists) Press said: It is in response to a federal court ruling last month that cast doubt on the agency's authority over high-speed Internet access.

Hmmm...

Tuesday's unanimous ruling by the three-judge panel was a setback for the FCC because it questioned the agency's authority to regulate broadband. By JOELLE TESSLER , AP Technology Writer April 6, 2010

When it comes to the Internet, some people just don't get it. And apparently a lot of them work at the FCC. The Internet is not a physical network, it is a protocol which allows billions of separate data connections to act as a single cohesive network. Trying to regulate part of the Internet as such is like walling off part of the ocean with cyclone fencing. You can do it if you feel like it, but the ocean will probably just ignore you.

@ eachusAlthough I agree they probably don't really get it, the internet is much more then http. There are tons of other protocols and traffic that should be allowed to flow freely. Ending net neutrality could also give Comcast the right to charge companies more for increased traffic, ending the free enterprise we know it now. I am not sure everyone 'gets' what could happen if the providers have total control.

Although I agree they probably don't really get it, the internet is much more then http.

I was referring to the IP (Internet Protocol) layer of the old ISO 7-layer stack. Of course, over time the IP and TCP (Transmission Control Protocol) have been pretty much squeezed together and are referred to as TCP/IP.

There are tons of other protocols and traffic that should be allowed to flow freely. Ending net neutrality could also give Comcast the right to charge companies more for increased traffic, ending the free enterprise we know it now. I am not sure everyone 'gets' what could happen if the providers have total control.

The point the FCC misses is that they get to control some communications media used by Comcast. But neither the FCC or Comcast have any control over cyberspace. The TCP and IP layers, and yes, http, ftp, and other higher level protocols exist to isolate the place where I am talking to you from any particular hardware.

I am not punching my message into cards folding them into paper airplanes and launching them across the room into a giant hopper. TCP/IP though can be used with those flying punched cards to reassemble the message deal with any planes that missed the hopper, and so on. I also don't know how you are accessing cyberspace to read these words--nor should I care. The protocols provide us with a communications medium in a hardware independent fashion. I'm old enough to remember when it wasn't always that way, when computers hooked to the ARPAnet couldn't talk to BITNET computers, or to AOL users.

Part of the magic of how the (modern) net works are routers that use heuristic algorithms to guess the best way to send each packet from here to wherever in hopes it will get to the right destination. Configuring routers is HARD. Programming routers is harder. I doubt that anyone in the higher echelons of the FCC can do either. And the the recent court decision tried to tell them that.

I guess the FCC and Obama administration doesn't have a clue. The Court and the people have been telling these folks they can't just change the way our government works. The powers each branch of government can exercise have already been established and most people still don't want a king.

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